AAV15 v Minister for Immigration
[2015] FCCA 637
•19 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAV15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 637 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| MZAPO v The Minister for Immigration & Anor [2015] FCCA 96 Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | AAV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 457 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 19 March 2015 |
| Date of Last Submission: | 19 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr P. Rame Westside Legal |
| Solicitors for the Respondent: | Ms S. Given Sparke Helmore |
ORDERS
The applicant’s application for an extension of time under s.477 is refused.
The proceeding before this Court, commenced by way of application on 25 February 2015, is summarily dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $1367.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 457 of 2015
| AAV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of the Tribunal’s decision dated 2 January 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant requires an extension of time under s. 477. The application identifies on the face the Court may hear and determine all interlocutory or final issues or make any directions for the future conduct of the proceedings. On the return date of this application the Court identified that the application failed to disclose any arguable issue and raised whether the application should be summarily dismissed.
I take into consideration in respect to the Court’s summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].
The ground of the application identified are as follows:
Ground One:
The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act.
Particulars
a. At paragraph [39] of the decision, the RRT accepted that the applicant would be identified as a failed asylum seeker and as a person who departed illegally;
Clearly, the Tribunal has engaged in a qualitative assessment of the circumstances of the Applicant’s detention whilst on remand rather than assessing whether the process of being questioned and investigated at the airport and remanded into custody (however brief) would amount to a deprivation of the applicant’s liberty. (Section 91R(2)(a).
b. The RRT accepted that the applicant had committed offences under Sri Lanka’s Immigrants and Emigrants Act;
c. At paragraph [43] of the decision, the RRT accept based available that the conditions of detention applicant will face whilst detained will be overcrowded, cramped and unpleasant.
By proceeding to a qualitative assessment of the nature and degree of harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect & Another [2014] FCA 947 at (30) and (45)
The solicitor for the applicant properly conceded there was nothing further he could put as to the identifying of an error other than what had been said as to WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 decision being the subject of appellate challenge.
I am clearly satisfied that the WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 decision can be distinguished from the circumstances of this case where the Tribunal made relevant adverse cumulative findings in relation to the application of the same kind as identified in SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2 and can be further distinguished for the reasons identified in MZAPO v The Minister for Immigration & Anor [2015] FCCA 96.
The Tribunal identified that the applicant made the application for the protection visa on 11 December 2012 and that application was refused by the delegate on 27 August 2013. The Tribunal correctly identified the claims and evidence advanced on behalf of the applicant and that is that the applicant appeared briefly before the Tribunal on 8 December 2014 and that the hearing on 8 December 2014 was adjourned, on 12 December 2014 the applicant again appeared before the Tribunal to give evidence and present arguments and the hearing was conducted with the assistance of an interpreter and that the applicant was represented by a registered migration agent.
The Tribunal also noted that the applicant’s representative had provided a submission dated 27 August 2014, together with a statutory declaration by the applicant. The Tribunal carefully considered the applicant’s claims, specifically in relation to his brother and made an adverse finding as to the credibility of the applicant:
21. The Tribunal does not accept that the applicant has given truthful evidence in relation to his brother’s disappearance. The Tribunal firstly considers that the photograph provided shortly before the Tribunal hearing, which purports to be of his brother wearing an LTTE uniform indicates that his brother died in 2006, which is before he went missing in January/February 2007. The Tribunal does not accept that the photograph/memorial document is genuine. The Tribunal considers it evident that it has been fabricated in an attempt by the applicant to establish that his brother was a member of the LTTE, thereby creating a profile for himself as someone who has significant LTTE connections. The Tribunal considers that this raises serious concerns about the applicant’s overall credibility.
The Tribunal also made adverse findings in relation to the claims concerning the involvement with the LTTE:
23. As stated above, whilst the Tribunal is prepared to accept that the applicant’s brother disappeared at a time when many thousands of young Tamil males disappeared without trace and without explanation, the Tribunal does not accept the applicant’s subsequent claims in relation to his brother’s involvement with the LTTE. The Tribunal does not accept that the applicant’s brother was abducted by the LTTE and his body handed over to his uncle. The Tribunal considers that the applicant has fabricated this claim in an attempt to embellish his profile as someone who has significant LTTE connections as a result of his brother.
The Tribunal was of the view that the applicant had embellished his claims in relation to his brother’s induction:
24. The Tribunal also considers that the applicant’s claims in relation to the harm he suffered following his brother’s abduction have been significantly embellished and recent events manufactured in an attempt to provide a profile for himself as someone with actual LTTE connections through his brother. The delegate’s decision record indicates that in his initial entry interview the applicant indicated he was questioned and rounded up after his return from India but he did not indicate he had any ongoing problems. The applicant has since claimed that after his brother’s disappearance he had to go to the army camp every day and report to the authorities. He has claimed that this situation continued until he left for Australia and he was constantly harassed and beaten on occasion because of his brother’s disappearance and suspicions he may have been involved with the LTTE. In his statutory declaration to the Tribunal, the applicant states that he does not know why he was detained by the Sri Lankan authorities and required to report regularly. He states that he suspects he was suspected of being an LTTE member or it may have been to deter him from joining the LTTE and it does not matter to the Sri Lankan authorities whether someone is a high level member of a low level member.
…
27. The Tribunal has considered the applicant’s claims regarding the actions which were taken against him after his brother’s disappearance. The Tribunal has not accepted that the applicant’s brother was abducted by the LTTE and was a member of the LTTE, but has accepted his brother disappeared in 2007. The Tribunal accepts that the applicant fled to India with his elder brother after his Rajkumar’s disappearance and accepts that the applicant was rounded up after his return from India and questioned, interrogated and beaten about Rajkumar’s disappearance and any connections he had with the LTTE. The Tribunal considers that the applicant’s claims to have been subject to questioning and interrogation in 2007 following his return from India are consistent with the independent evidence indicating that during and in the aftermath of the conflict many thousands of young Tamil men were questioned and interrogated about possible LTTE connections, and were frequently subject to serious mistreatment during that time. The Tribunal has considered the applicant’s explanation for his failure to mention ongoing problems after his return from India at the hands of the authorities. However, the Tribunal considers that the fact that the applicant did not mention in his entry interview that he had ongoing problems after his return from India raises serious doubts as to the applicant’s claims in relation to any ongoing problems he may have had. The Tribunal considers that had he had ongoing problems such that he was regularly required to report to the authorities and again questioned and interrogated shortly before he left Sri Lanka he would have mentioned this, even briefly, during the entry interview, rather than indicating that he did not have any ongoing harassment or questioning by the authorities.
I note in relation to the LTTE allegations the Tribunal made further findings:
28. … The Tribunal does not accept, in light of the independent evidence, that the applicant would be subject to frequent and ongoing questioning for some five years for the purposes of deterrence or to determine if he was an LTTE supporter or a family member of a supporter or member of the LTTE. The Tribunal does not accept that the applicant would have been continually detained and released by the authorities, rather than being arrested and detained for a period of time on such suspicion, if any LTTE connections through his brother were suspected.
The Tribunal made a further adverse finding in relation to the claims of adverse treatment by the applicant:
29. The Tribunal also considers that the applicant’s claims as to how the authorities would know that his brother was a member of the LTTE to be indicative of the fact that his claims to have been continually required to report and to have been targeted by the authorities until 2012 to have been fabricated. When asked during the hearing how the authorities would know that his brother was involved with the LTTE, the applicant stated that when his uncle came and told his mother she cried loudly, which is the manner in which Sri Lankan Tamils cry, and the neighbours may know and may have informed the army because the camp is near his home. When asked why his Tamil neighbours would inform the police that his brother was involved with the LTTE, the applicant stated that everyone is in competition with each other and they may have informed the authorities. The Tribunal does not accept the applicant’s account of how the authorities would know his brother was with the LTTE and considers his claims are not credible and further indicative of the fact that these claims have been manufactured.
In relation to the applicant’s alleged political profile, the Tribunal made the following finding:
30. …The Tribunal does not accept, therefore, that when the applicant left Sri Lanka in mid 2012 he had any adverse political profile such that he was suspected of being an LTTE supporter or member or of any involvement with any other Tamil nationalist movements
Materially, in relation to the alleged ground identified, the Tribunal identified that it had considered the situation as to the applicant’s return to Sri Lanka and whether there was a real chance that he will be harmed upon his return for a conventional reason.
In considering the applicant’s return to Sri Lanka, the Tribunal has found above that the applicant did not have any adverse political profile as a supporter or member of the LTTE or someone who was opposed to the Government prior to the departure from Sri Lanka and that the Tribunal has considered whether there was a real chance the applicant would be harmed as a result of these factors.
So in these circumstances the Tribunal made adverse findings as follows:
37. The Tribunal has not accepted at the time he left Sri Lanka, the applicant had any suspected or actual links with the LTTE. The Tribunal also does not accept that the evidence establishes that Tamils are at risk of serious harm on the basis of their ethnicity alone or because they are from a particular part of Sri Lanka which was an LTTE occupied area, such as the Northern and Eastern parts of Sri Lanka. The Tribunal accepts the applicant’s claims to the Department that he believes his educational and employment opportunities were not of the same level as those available to Sinhalese. The applicant has, however, been able to obtain employment throughout his working life whilst he was in Sri Lanka. The Tribunal has also had regard to information from DFAT which indicates that official laws or policies in Sri Lanka do not discriminate against Tamils and the government does not discriminate against Tamils in the way it in the way it applies the laws. The Tribunal is also not satisfied that the evidence establishes that he will be unable to continue to earn a livelihood upon his return to Sri Lanka.
38. The Tribunal is not satisfied, having regard to all of the evidence, that that there is a real chance that the applicant will be sought upon his return because he is perceived to have LTTE links, or that he has actual LTTE links, or that there is a real chance he will suffer serious harm because he is a young, single Tamil male from the Eastern province of Sri Lanka or because he has a brother who has disappeared. As indicated above, the evidence indicates that many thousands of young Tamil males disappeared during and in the aftermath of the civil war. The Tribunal is not satisfied that the applicant’s brother’s disappearance in 2007, is such that it will give rise to a real chance that the applicant will suffer serious harm upon his return to Sri Lanka.
The Tribunal turned to the alleged concern of the applicant in respect of being a failed asylum seeker and his illegal departure from Sri Lanka. Ultimately, the Tribunal made the following findings:
43. The information indicates that returnees are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service and the airport Criminal Investigation Department (CID). These processes involve police and security clearances, including checks with the person's local police station and may take some hours. If they reveal outstanding arrest warrants for prior criminal offences, or if there are alerts against the person’s name on immigration watch-lists, they may be subject to further questioning. Additional questioning would also be involved if the person was of security interest or if there were evidence of involvement in people smuggling. As a result of tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach immigration laws are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the person’s recognisance, although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday, the returnee is placed in the remand section of [N] prison until a bail hearing is available. The Tribunal accepts that conditions in remand have been described in media reports as overcrowded and unsanitary, with a lack of access to adequate food, water and a lack of access to assistance and limited reform regarding violence and maltreatment. However, the Tribunal considers that the weight of the evidence indicates that returnees will most likely be held for only a short period in remand and will then be bailed. The Tribunal is not satisfied the weight of the evidence establishes that returnees held in remand whilst awaiting bail hearings have been subject to torture or other forms of deliberate mistreatment.
44. The evidence before the Tribunal also indicates that the penalties imposed on returnees by the courts for illegal departure may take the form of fines or a custodial sentence, but the most likely penalty for leaving Sri Lanka illegally would be a fine, unless the person is considered to be an organiser of people smuggling. The Tribunal is not satisfied the evidence indicates there is a real chance the applicant will receive a custodial sentence. The Tribunal also does not accept there is any evidence that the applicant will be suspected of people smuggling or there is any evidence of outstanding criminal matters or that he would be on a watch list. DFAT was informed in March 2014 that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. The fines levied by the Magistrates Court in Colombo are typically about 5,000 Sri Lankan Rupees (around AUD 40). The applicant has not claimed that he will be unable to pay this amount, or even a higher amount, and the Tribunal is not satisfied that the scale of the fine is such that it amounts to serious harm. In the alternative, the Tribunal also considers that the evidence indicates that anyone who has left Sri Lanka illegally may be subject to a fine for doing so and there is also no evidence of differential treatment in the application of the fine.
45. The Tribunal has had regard to the applicant’s claims regarding the absence of media attention following persons who have sought asylum returning to their villages. However, the Tribunal considers that despite the large numbers of reported involuntary returnees to Sri Lanka, and despite high level reporting, there is very limited evidence of returnees suffering mistreatment, either upon their arrival or following return to their villages. The Tribunal is also not satisfied that there is a real chance that the applicant will suffer serious harm following his return to his village as he has claimed. Having considered the evidence as set out above, the Tribunal is not satisfied the applicant has any particular profile such that there is a real chance of serious harm upon his arrival, even having regard to his illegal departure from Sri Lanka, and the authorities’ awareness that he has applied for asylum in a Western country. The Tribunal accepts that the applicant will be questioned at the airport, but does not accept that his brother’s disappearance or the fact that he was questioned and interrogated in 2007 and was required to report for some period of time will result in him being subject to interrogation or mistreatment whilst at the airport. The Tribunal accepts that there is a possibility he will be held for a limited period in remand whilst waiting bail, in conditions that can be poor due to overcrowding and unsanitary conditions. The evidence does not establish that the applicant will be singled out or treated any differently because he left Sri Lanka illegally and considers that questioning at the airport, being placed in a remand for a short period and charged is not because he is a Tamil, but because he left Sri Lanka illegally. The Tribunal is not satisfied that he will be imputed with a political opinion because he has left illegally or singled out or treated differently because he is a member of a particular social group of failed asylum seekers or any other particular social group. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population and not specifically to Tamils. The Tribunal is not satisfied therefore, that questioning, arrest, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c).
In para. 46 the Tribunal said:
46. …Therefore, having considered the independent evidence and the applicant’s personal circumstances, the Tribunal is not satisfied that there is a real chance that he would suffer serious harm amounting to persecution on arrival in Sri Lanka or upon his return to his village because he is a Tamil, a failed asylum seeker or because he left Sri Lanka illegally without proper documentation, or for any other Convention reason.
The Tribunal then made the following conclusions:
47. In the light of all the information before the Tribunal, considered both individually and cumulatively, the Tribunal is not satisfied there is a real chance that on return to Sri Lanka the applicant would suffer serious harm amounting to persecution for the Convention reasons of his Tamil ethnicity, his actual or imputed political opinion or his membership of a particular social group. He does not claim to fear serious harm for any other Convention reason and no other reason is apparent on the face of the information before the Tribunal. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal then turned to consider the issue of a complementary protection, and I will have set out paragraphs - - -
- - - and in that regard the Tribunal concluded in para.49 as follows:
49. The Tribunal has not accepted the applicant’s claims in relation to his fear of harm regarding actual or imputed LTTE connections and has not accepted his claims of ongoing harassment, arrest and reporting. The Tribunal is also not satisfied for the purposes of the Complementary Protection provisions that the applicant will be considered to have any LTTE connections or adverse political profile such that there is a real risk he will suffer significant harm upon his return to Sri Lanka or that there is a real risk that he will suffer significant harm on the basis that he is a young single Tamil male from the Eastern province of Sri Lanka. As stated above, although the Tribunal has accepted that the applicant’s brother disappeared, it has not accepted that there is a real chance that this will result in him suffering serious harm upon his return to Sri Lanka. For the same reasons, the Tribunal is also not satisfied that there is a real risk that the applicant will suffer significant harm for this reason upon his return to Sri Lanka.
…
51. The Tribunal has had regard to the submissions regarding problems for returnees to Sri Lanka, including the submissions regarding the suppression of media monitoring. The independent evidence in relation to returnees is discussed above. The Tribunal considers that the weight of that evidence indicates that despite large numbers of reported involuntary returnees to Sri Lanka, including Tamil males from Australia and those who departed Sri Lanka illegally by boat, and high level media interest in such persons, there has been no reporting of persons suffering significant harm as contemplated by s.36(2A). The Tribunal is not satisfied that during any questioning at the airport that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor is the Tribunal satisfied that the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’. The Tribunal is also not satisfied that the evidence indicates that during a period in remand there is a real risk that the applicant will suffer intentional inflicted torture, the death penalty or arbitrary deprivation of life.
52. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm when he is questioned at the airport or during any period which he may spend in jail on remand. Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that he will be subject to an enforced abduction following his return to Sri Lanka or a real risk that he will be subject to significant harm upon his return to his village, or indeed, elsewhere in Sri Lanka.
…
54. The Tribunal finds, therefore, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
For those reasons the Tribunal came to the view that it was not satisfied the applicant as a person in respect of whom Australia has protection obligations under the Refugee Convention and the applicant does not satisfy the criteria under s.36(2)(a) and does not meet the criteria under the alternative of s.36(2)(aa). It was on that basis that the Tribunal dismissed the application.
The Tribunal clearly found that the law that would be applied to the applicant on return to Sri Lanka was a law that was not applied arbitrarily or on a discriminatory basis and was clearly a law of general application. It is clear the Tribunal has addressed the character of that law. It is in those circumstances that the evidence and cumulative findings in relation to s.91R, relevantly that the applicant was not exposed to persecution for one or more of the conventional reasons, is fatal to the application in the present case. Further, the application in the present case is one in respect of which the applicant needs an extension of time in circumstances where the grounds are doomed to failure. There is clearly no substance in the application for an extension of time under s.477.
I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 8 April 2015
CORRECTIONS
Para.19 amended to delete , and I will have set out paragraphs --- and replace with The Tribunal then turned to consider the issue of complementary protection.
Para.20 amended to delete ---and and replace with In that regard the Tribunal concluded in para.49 as follows:
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